Opinion
March 21, 1942. Writ of Certiorari Denied May 4, 1942. See 62 S.Ct. 1107, 86 L.Ed. ___.
Upon Petition for Leave to Appeal.
Proceeding in the matter of the application of John Russell Miller for leave to prosecute a petition for writ of habeas corpus in forma pauperis.
Application denied.
John Russell Miller, in pro. per.
No other appearances entered.
Before GARRECHT and HANEY, Circuit Judges.
The petitioner is imprisoned in the California State Prison at San Quentin under a commitment of a state court of California. Successively, he has applied for a writ of habeas corpus to the Superior Court, the District Court of Appeal, and the Supreme Court of the State of California, and the District Court of the United States for the Northern District of California. Each court, in turn, denied his application. No appeal was taken to the Supreme Court of the United States from the order of the state Supreme Court denying the application for the writ. He now presents to this court an application for leave to prosecute herein a petition for writ of habeas corpus in forma pauperis.
Two reasons exist which demonstrate the lack of merit in petitioner's application: (1) This court is empowered to issue writs of habeas corpus only in aid of its appellate jurisdiction; and (2) lower federal courts should not grant a writ of habeas corpus where petitioner is detained under state process, save where exceptional circumstances of peculiar urgency are shown to exist. See In re Anderson, 9 Cir., 117 F.2d 939, 940, and cases there cited.
"Moreover, in view of the delicate question of interference by inferior Federal courts with the judgment of the courts of a sovereign state of the Union which is presented by an application such as this, it appears to be the approved practice that if such an application is to be presented after exhaustion of the State judicial remedies, it should be made directly to the Supreme Court of the United States. [Cases cited.]" Kramer v. State of Nevada, 9 Cir., 122 F.2d 417, 419; Hogue v. Duffy, Warden, 9 Cir., 124 F.2d 864.
The application is denied.